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tv   Dateline NBC  NBC  October 8, 2012 2:00am-3:00am PDT

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i hate ta think that could happen. >> a dive instructor and his wife on a trip to the tropics. until a scuba adventure turns into disaster. >> he surfaces screaming. it's shelley. >> she never reached the surface. what happened some 80 feet down? prosecutors called it murder. >> this is the classic motivation. the other woman. >> yes. >> a wife lost in the deep. >> fighting for my life. >> a husband becomes the accused. >> you turned off her air supply, pulled her under water. did that happen? >> absolutely not. >> now, hold your breath for the twist. >> that was when the most surreal moment of my life.
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>> "the last dive." welcome to "dateline," everyone. i'm lester holt. it's a case some call the perfect crime. the setting sure was perfect, an island in the caribbean. a getaway vacation for a stressed out couple from new england. but only one of them came back alive. prosecutors would claim it was cold-blooded murder. let's see what you think happened in those warm tropical waters. because even after two juries had spoken, this case had a whole new ending. here's dennis murphy. >> for most of us who enjoy spending time in the water and an occasional swim, a dunk in a back yard pool will suffice. but for the more adventurous, only total submersion in the open ocean will do. a ticket to paradise. >> it's a majestic world. it's just awe inspiring.
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>> it's incredibly peaceful. you're down there with the fish. you look around you and it's amazing wonder. the closer you look, the more beautiful it gets. >> all of your senses are getting overloaded. the visual colors are phenomenal. >> david swain and his wife shelley tyre shared that passion for scuba diving. >> get me in the water, that's where i belong. >> so to escape a winter in '99 they got on a sailboat. if a carefree vacation is what you want, it doesn't get much better than this. >> was shelley looking forward to it? >> yeah. it was a different experience for her. sbl she was a big fish person. >> yeah. anything with critters. that was what she was about. >> she liked to count fish under water. he liked to photograph. what could go wrong? turns out a lot. they were around tortola when it
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happened. >> immediately noticed her breathing apparatus was out of her mouth. >> i heard a call there was a diving accident and they needed assistance. >> the body appeared to be lifeless. >> what happened in 30 minutes time 80 feet beneath the surface would be examined and replayed in people's minds for the next decade. how was it that an experienced diver like shelley tyre could be lost just like that? and when it happened, where exactly was her husband a master dive instructor who was her diving buddy on that dive? he would land in the center of a far reaching investigation. and tonight he speaks exclusively with "dateline" about the latest chapter. >> i'm in shock again. >> and answers the tough questions. >> i don't know what happened. i wasn't there. >> give me a theory. >> i don't have a theory. >> it's a decade-long story that began here in coastal rhode
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island far from the beautiful islands of the caribbean. it was the early '90s when they met. he was the dive instructor and she was the customer out on the boat. >> it was a rocky day. little bumpy. couple of the big tough guys got seasick so i paired with her and went back in. >> so she had spunk. >> she had a lot of spunk. i was showing her fish in a way she hadn't seen them before. that's what got things started. >> shelley tyre was a 5' nothing tall teacher. he showed her where he pursued his lives professor. teaching school and kayaking through his dive shop in rhode island. here he is in 1997 giving a kayak lesson. >> it's just a very easy figure eight stroke. swain was known to his friends
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and customers as an honest businessman and active member of the community. and likewise the people in shelley's circle raved about her. school parents like colleen. >> she was effervescent. she was always on the move, on the go. >> shelley who wore a bumblebee costume to an event once was seen as nothing less than a gift by the staff at thayer academy where she was a teacher. >> when she spoke to you, she looked you in the eye. she didn't care. the world fell away. she was focused on you and listening to what you had to say. it was great. >> and always by her side, her partner tori. her love was ready for a pupil who had a bad day. they married in 1993. they didn't have children together but she endured herself
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to his two from a previous marriage. >> did she fit in okay? >> the kids loved her. >> what was that thing between you? >> a love of adventure and nature. you couldn't find somebody that had more liveliness and determination. >> if there was a marital speed bump, it was shelley's week day commute. the private school where she worked was a long ways from coastal rhode island. she was probably seeing more of tori the dog than her husband. >> i think an ungotful amount. >> at least four hours behind the wheel. >> yes. >> did that start to get to her? >> there were times it would get to her. she would be up at the crack on dawn and not get home until late at night. without question, we were struggling about the time apart. >> spring break of 1999 would be shelley and david's time to escape the grind and enjoy together what they loved best. the water. >> come spring break that year,
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she and her husband were going to the virgin islands and dive. one of the most beautiful oceans of the world. >> exactly. >> but of course that trip, that last dive, would go so his or her thebly wrong. how could anyone make sense of the deeply sad and mysterious death of shelley tyre? >> when we come back, disaster under water. >> he surfaces screaming. >> what had happened beneath the surface? >> he's got another diver with him. i realize it's shelley. >> when "the last dive" continues. [ female announcer ] imagine an air freshener
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sailing, diving, post guard beaches. how shelley tyre looked forward to it. they had chartered a sailboat with their friends. the other couple would be bringing along their young son. a week of diving and sailing whichever way caught their fancy. upon arrival here in tortola, they went to get scuba gear. the women went for their boat
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the caribbean soul. and to this day no one in that group can say that anything was amiss. and it was by all accounts the leisurely week in the caribbean all hoped for. they dove the british islands' greatest hits. on the morning of march 12th, they set a course for cooper island and the site known as the twin wrecks. dive instructor keith royal has been down to the twin wrecks hundreds of times. >> they are two wrecks sitting right next to each other bow to stern. and there's a small gap in between them. the allure to that is the fish life. >> david swain and his first christian were both certified scuba instructors. they had over a thousand dives under their belts together. and shelley had recorded more than 350 dives. now, divers with comparable
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experience tells you diving the twin wrecks site with minimal currents is about as challenging as a walk in the park on a sunny day. at about noon that day, the caribbean soul tied up at the twin wrecks. in the sometimes busy tourist ocean, the friends on board would have the dive site all to themselves. then david and shelley made their dive plan. >> this particular time, it was decided that we'd go down first, shelley and i. >> david swain says he and shelley made a routine entry into the water and then made their way down over the reef and across the open sand to the twin wrecks dive site. >> as we routinely did, probably 150 times, she went off with herself and counted fish. and i went off and took
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pictures. >> he said they went their separate ways. >> when i get pretty much around the wreck, circumnavigate the wreck, i don't see her anywhere. i think she's around the wreck or she's gone off somewhere else. so i head off to the reef looking for a better photo thing. >> what's your recollection of the last time you saw her? >> as best i can recall, it was when we parted ways on the wreck. >> he says when they parted about ten minutes into the dive, shelley appeared fine. but somehow at some point in what should have been a pleasant little dive before lunch, something went gravley amiss. david swain said he surfaced alone and spoke to christian. >> my first question is shelley back yet. he said no. i said okay. looks like you're going in. >> at that moment is there any alarm? >> no. he wasn't alarmed, i wasn't alarmed. >> christian then started his dive. he would later give a statement
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that between the anchor line and the wrecks, he found something odd. shelley's fin like this one sticking up out of the sand. when he got closer to the wrecks he found shelley herself lying on the ocean floor face up, eyes open near one end of the boats. he quickly grabbed her and brought her to the surface. >> and then christian does come back. >> he doesn't come back. he surfaces screaming. >> what did you hear in his voice. words or alarm? >> the word was emergency. >> swain hopped in the dinghy and sped over to him. >> when i get close, i do see that he's got another diver with him. then as i get closer i realize it's shelley. >> how much trouble was shelley in. >> the idea she was unresponsive right away, that was a huge problem. >> they both attempted cpr, but her body did not respond. david trained as an emt said she's gone. >> the part that really got me was her pupils were just flat out saucers, not doing anything.
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that's what broke my heart and brought this whole calamity to where we are today. >> back on the boat swain radioed for help. the first response was keith royal. >> the scene on caribbean soul was somber. shelley was laying in the cockpit and everybody was very distraught. >> back on the island, shelley was pronounced dead. an autopsy was conducted at a local funeral home. the cause of death, drowning. the medical examiner ruled it an accident. swain was free to leave tortola and return to his small island of jamestown, rhode island. to settle back into his routine he held for years. running his dive shop. but now without his shelley. >> years later he would return to tortola but this time in handcuffs. coming up, called an accident, could that drowning had been deliberate? a dramatic reenactment on tape
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of that day in the deep. >> we found out what we wanted to find
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at the phone and saw there were 12 messages, i thought it meaned somebody died. >> colleen remembers the day thayer academy lost its headmaster and beloved friend shelley tyre. >> how did you take the news? >> i cried for three months in a row. it was hard. it's a hard thing to think that someone -- that could happen to someone. >> and not just anyone. but someone so full of live as vivacious, energetic shelley tyre. what had happened to cause her to drown while scuba diving off
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tortola? back home in rhode island, the newly widowed david swain shared few details. even with good friends like local marina owner bill munga. >> do you remember what you said? >> yeah. i gave him a hug. there were tears for both of us. >> but the talk here on rhode island was that david swain wasn't acting the way a grieving widower should. he seemed detached at her memorial service to some. to others it looked he was living it up on the $600,000 he received after her death. and a few months after losing his wife, he started dating again. a story began to buzz on main street about how shelley had been found under water missing some of her diving gear. some locals thought it didn't add up. >> was the town divided then? >> certainly if you went up and down the avenue here you would find, you know, people on both sides of the issue. >> could it be? was it even remotely possible
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that david swain had had something to do with his wife shelley's death? that was the question burning in the minds of shelley tyre's parents richard and lisa. ever since swain had returned from tortola with their daughter's body, the tyres demanded answers from their son-in-law. answers that weren't forthcoming. >> the first moment i heard it, i kept saying over the phone to him, but you had the buddy system. you were there. you had the buddy system. you were there. and he just kept saying i wasn't there. >> so they're saying you're the expert. you're the buddy. you're the caretaker of our daughter. >> they were wondering -- >> why'd you leave her. >> yeah. why did i let this happen. >> his first face to face meeting with them ended in a shoulding match. and for the next three years, there's suspicion of foul play. so much so that in 2002 her parents filed a wrongful death suit claiming swain was involved in shelley tyre's death. >> nothing that happens in the
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court takes care of our pain and our loss. >> i'm very, very emotional, yes. >> the tyres hired experts to investigate shelley's drowning. after traveling to tortola, they formulated this scenario which they reenacted on videotape. that david swain attacked her under water, approaching her from behind, shutting off her air supply and holding her down until the drowned. it was a shocking allegation. one that was never seriously challenged. because david swain's lawyer fell ill and swain himself chose not to appear in court. >> why didn't you take the civil suit -- it seems to outsiders more seriously. it looked like you kissed this off. and it was a very serious event. >> in the civil world, he who has the most money will almost always win. and here not only did they have the most money, i had no lawyer. so where was there any chance of
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me winning? >> at the end of the trial, though, david swain did make a surprise appearance. and a last ditch effort to defend himself. >> it's a grand story, but it's just not true. >> he then called his soul witness, his daughter jennifer. who described how her father showed genuine emotion when shelley was lost. >> he told us the story about shelley's drowning. you were tearful and angry. >> but it wasn't enough. >> have you reached a verdict? >> we have. >> david swain was found responsible for shelley tyre's death. the jury awarded her parents $3.5 million, though swain couldn't pay because he'd filed for bankruptcy months before. >> we have now found out what we wanted to find out, what exactly happened. >> the friends who'd stood by him throughout were shocked by what they saw as nothing less than a miscarriage of justice.
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>> there was no cross examination. there was no -- i mean, nothing went on. it was totally a one-sided trial. >> but that civil verdict did catch the attention of authorities a world away. down here in tortola, the british virgin islands. officials here had ruled tyre's death in 1999 an accident. but the fine print read an accident unless proven otherwise. that judgment against swain gave authorities here fresh ammunition. tortola reviewed the evidence from the civil case and made an extradition request. eight years after her death, u.s. marshals showed up at the dive shop and arrested swain for the murder of shelley tyre. >> david swain is headed back to the caribbean. this is no vacation. >> swain is being held without bail. >> this is miracle this is happening. >> this time swain wouldn't take any chances. he would launch a vigorous defense. but he'd now have to plan it from his new home. a stifling cell in tortola's
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prison. a fortress high up on a bluff facing the ocean where the view can't be beat but comes at a price no one wants to pay. when we come back, a criminal trial begins with some surprising revelations. another diver in the life of david swain? >> so this is the classic motivation, the classic ingredient of murder sometimes. the other woman. >> yes. >> when "the last dive" continues. [ female announcer ] imagine an air freshener that can instantly make your home fresh and inviting. introducing glade expressions fragrance mist. a squeeze at the neck of the bottle releases a fragrant mist, eliminating odors. light layers of fresh cotton and italian mandarin that instantly fill the air with fragrance. with a stylish design, it can be left out. so you can add long-lasting fragrance whenever you need it. ♪ and it's available in an easy-to-replace refill. glade expressions fragrance mist. sc johnson. a family company.
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david swain had spent two years in a small prison in tortola. >> the only time i was out of my cell was one or two hours a day i could walk around. when they'd let me out, i'd walk for that entire time. >> but now swain would finally have his day in court. the charge murdering his wife shelley tyre on a scuba dive ten years before. he pleaded not guilty and with the stakes so much higher this time, criminal, not about money. but maybe decades in prison. swain came prepared with caribbean counsel and from boston. >> it's going to be a lengthy trial. they couldn't to call witnesses for another 12 days. >> but shelley tyre also had
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their lawyer in tow. he was now helping tortola prosecutors. swain's attorney. >> the prosecution wasn't going to conduct any further investigation. they had something that was neatly packaged in their view and they presented that in the criminal case in tortola. >> the civil suit became a criminal suit. >> exactly. >> no cameras were allowed in court but the proceedings could be audio recorded. he spoke of motive. >> this man here, his wife is killed. and all his dreams came true. all his dreams came true. >> dreams, he would argue, about insurance money. more than $600,000 and another woman in swain's life. a lethal scheme executed, he said, in an underwater setting. the autopsy had shown no underlying medical reasons for shelley to have drowned.
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so the key to what did happen to shelley tyre was her diving gear. how it was damaged. the snorkel missing the mouthpiece. the pin pin that held the strap in place, gone. that damage happens rarely in the world of scuba, experts said. and only when great force is applied to the equipment. >> they have never, ever seen this stuff broken like this during a dive. never ever. >> and what about shelley tyre's lone flipper all by itself stuck in the sand toe first, it's heel strap pulled back? the prosecution said it could have ended up in that position if shelley's foot was yanked out of it. the prosecution put forth the same argument they said in the civil trial. that her scuba gear in such disarray meant only one thing, that she had been attacked under water. >> what this shows is a
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continued struggle with a human being. >> and the prosecution says the only human on that dive with shelley was her husband and dive buddy david swain. but swain had always insisted he was nowhere near shelley when she died. rather, he and shelley had gone their separate ways after reaching the wrecks. >> i have a vague recollection of circumnavigating the wrecks, poking around the wrecks, and seeing shelley still interested in looking at something around there. and that's the last time i saw her as i swam off towards the reef. >> but now the prosecutor said that swain's own words in this taped deposition proved he was still with shelley when she died. listen to how long he says he was at the wrecks before leaving shelley for the reef. >> how much time did you spend at the wrecks? >> not long. certainly less than ten minutes, but probably more than five.
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>> and after your five to ten minutes at the wrecks, what did you do? >> me anderred over to the reef. >> but that is around when she died. here's why laid out by experts. the experts said based on the amount of oxygen used up from her tank on the last dive, they estimated she took her last breath around eight minutes into the dive. meaning after eight minutes under water swb she drowned. the experts then said given swain's description of his dive, swain would have been right where shelley was right when she was drowning. >> obviously he was there with her. and further it goes to tell you that when he swims away according to him, looks back at sees her and she's fine. that could not be true. >> why would he do it the prosecutor asks?
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take a snapshot of their life before the vacation? shelley tyre had recently taken a new job to spend more time with her husband. but she'd also taken a pay cut. the prosecutor said to swain this meant shelley might quit sinking money into his dive shop as she had for years. what's more, shelley might be around the house more. but is this what swain really wanted? the answer said the prosecutor was swain's second motive. >> he had started to have attraction to another woman. towards the end of the -- before she died. >> that other woman was mary grace basler. she was a local chiropractor. jury heard that david swain had tried to kiss her during a night at her home. but she rejected his advances because he was married. >> so this is the classic motivation, the classic
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ingredient of murder sometimes. the other woman. >> yes. >> then there was the letter that swain wrote to mary basler. in one he asked him to join her in vermont. he called her soul mate mary. another he signs with all my love, david. most ominously dated this one five months before shelley's death which says u life has definitely gotten more complicated. i'm wanting to be with you but i can't change this mess i've got anytime soon. why not just divorce? because they're nuptial agreement prevented either from receiving money from the other if they parted ways. but the prosecution said swain saw another way. >> in the will, if she died, he benefitted from her entire estate. >> in fact, with shelley gone, david would get the dive shop, the money, and the girl. just two months after his wife's death, he and mary basler started dating.
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>> and they became a couple following the death. >> yes, they did for a year and a bit. then she broke it off. >> lastly williams also brought to the stand a trio of witnesses critical to the prosecution's case. his friend christian on the boat that said swain hardly performed cpr even though mandates say to keep performing until help arrives. >> by all accounts, there was brief cpr. >> brief meaning a few minutes? >> a few minutes. >> keith royal testified that when he pulled his boat up to the caribbean soul to offer assistance, he was surprised to be told no thanks. >> he declined by offer of cpr and oxygen. and i thought it was a little strange. >> another prosecution witness was phil brown, the island dive shop owner who'd rented the two coupled their gear and who collected shelley's equipment
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from the ocean bottom. brown said swain later came into his shop after the so-called accident and told him to give away shelley's dive gear. add it up, says the prosecutor, and you have a husband who wanted the gear out before the investigation. a husband who didn't try to revive his wife. a husband who wanted her dead. but ties in the caribbean like everywhere else run in and out. for the first time in ten years of rumors and lawsuits, the jury would hear a true defense from david swain. an the prosecutor's account that seemed as clear as the virgin islands dive site would become murky and clouded over. coming up,. >> canoodling at her place with a glass of wine. >> i'm not going to deny that. >> david swain tells "dateline" his complete story. will it help or hurt his case? when "dateline" continues.
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greetings from the people here sure are friendly but some have had a hard time understanding my accent.
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so to make sure people get every word of the geico savings message i've been practicing how to talk like a true chicagoan. switching to geico could save you hundreds of dollars on car insurance... da bears. haha... you people sure do talk funny. geico®. fifteen minutes could save you fifteen percent or more on car insurance. tortola jurors in the case had just finished hearing from 17 prosecution witnesses. one witness that captured their attention in particular was rhode island chiropractor mary basler. >> what about mary? was she your girlfriend on the side? >> she was a girlfriend after
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shelley's pass. she was not a girlfriend before the passing. >> yet there was a story of a canoodling at her place with a glass of wine and attempted kiss. >> i'm not going to deny that. did i cross a line that i probably in retrospect would like to have back? sure. but there was no intimacy. >> mary was feeling a bit of a void? >> i think mary was being an emotional friend. she was fun to be with. she was a smart gal. she was empathetic. >> was mary motivation for murder? >> absolutely not. >> what about the letters he wrote her? >> did you give the prosecution ammunition with that? >> he really laid into me. i probably didn't answer things in a way that made the jury happy. >> that idea laid out that with shelley gone, swain would get the money and the girl was a
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juicy sounding motive. but swain's attorney said it wasn't true. >> the idea of david intentionally attacking his wife isn't born out by history. he's got no history of violence. he's never raised a hand to anyone in his life. >> yet what else buzz an attack would explain shelley's broken dive gear found on the ocean floor? >> i'd be wondering what's up with the scattered gear. why is this pin off this? >> absolutely. >> this unbreakable piece of gear. the mouthpiece. what happened to this woman? >> all valid questions. the rescue divers manual points to the signs of the panicked diver. and it says that they reject their gear. >> jurors evidence that this was ripped off in an underwater struggle. >> and the struggle might have been with herself. it's routine with panicked people to rip off their gear.
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>> why does that happen? it seems inexplicable. >> when you are in a panicked situation, rational thought goes out of your brain. and the only thing that comes into your brain under water when in a panicked situation is getting to the surface. so they start clawing things off. >> and you've seen it. it's documented in the sport. >> i have rode people to the surface slowing them down so they don't go to the surface too fast. replacing the gear as they're ripping it off their faces. >> a fresh angle for jurors to ponder about the puzzling death. could something, a sudden medical issue or a startling sea creature set off a chain of events that caught shelley tyre to fatally panic. they read excerpts from her dive logbook. a diary in which she noted each time she'd lost it a bit to fear. dive 167, some initial panic. dive 183, panic. dive 266, i admit i panicked.
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dive 274, panicked a little or more. but what about the prosecution's claim that if you believe david swain's description of his dive, he would have been there when shelley was drowning eight minutes after she entered the water? now the defense said hang on. how do we know shelley stopped breathing after eight minutes? in truth, she was so petite, she was known for using less air than an average diver. if she was just sipping at her air, she could have died well after just as he said. >> i wasn't there. by the time this happened, i was hundreds of yards away. >> but if shelley had died alone, what about that confounding clue on the ocean floor, her dive fin found stuck toe first into the sand? the prosecution argued it was forced in during the attack. the defense wondered about that theory and "dateline" tried it out conducting our own experiment at the twin wrecks
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site with the help of tortola diver keith royal. >> i went down on the same area and tried to do the same thing myself with the fin on, and it was impossible. the only way i could get it to stick in the sand was physically with my hands putting it into the sand. >> in other words, royal says someone must have put it there intentionally. but who? >> in court, the defense brought all the pieces together in its theory about what might have happened on shelley tyre's final dive, number 355. a bruise found later in the autopsy had been bothering her on her left foot. so she sticks the fin to retrieve later. perhaps a bit of water leaks into her mask, but it escalates fast. frustration takes hold and mushrooms into full blown panic. she can't tamp it down like before. irrationally, she tears off her
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mask and rejects her regulator. and out of sight of her husband david, she fatally loses control. next david swain would take the stand. and dark family secrets were about to be revealed. would they seal his fate or set him free? coming up -- >> i've had decades of horrific things happen to me. >> a painful past and a dramatic turn of events. >> fighting for my life. >> the bombshell that came after
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we really need to remember that she was this incredible life force. and she had all this energy, positive energy. so every time it came around to the criminal trial, i thought please god let somebody find a
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way back to letting people know how wonderful she was. >> that special light of shelley tyre, dearly missed by so many who knew her. was her husband david swain responsible for taking it from the world? or was he an innocent man whose private ways had made a tragic accident only look like murder? a jury in a tortola courtroom would soon decide. but not before david swain himself took the stand to answer questions from his island attorney. >> mr. swain, when you went on the dive with shelley tyre on that 12th of march of 1999, did you kill shelley tyre? >> i did not, could not, would not dream of taking the rock of my life out of the world. that's just -- no, i did not. >> did you in any way during the course of that dive deprive shelley tyre of air?
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>> the last thing in the world is i would deprive shelley of anything. i certainly didn't of air. >> then it was the prosecution's turn. >> you held her down. >> i did not. >> made her become unconscious. >> i did not. >> and this was within eight minutes of the dive. >> it was not. i did not. you are making false accusations. >> you got a little edgy on the stand. >> i'm sure i did. >> little abrasive. little in the face. >> i'm fighting for my life. >> missing from his testimony was the grief of a husband who had lost his wife to a diving accident. >> did you get penalized for not showing a turbulent soul that they expected? >> i'm positive i have been penalized for not being what people expect. >> david swain says he's always had trouble expressing emotion in a way people expect. it's a problem he attributes to a very dark and secretive past.
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>> i've had decades of horrific things happen to me. and the only way that i've survived all of these horrific things that have happened is to just buckle down and keep marching. >> you had a tough childhood, safe to say? >> safe to say. >> his father was accused of enthusing a family member. >> what can your teenage brain make of that? my father is going to be known as diane? >> since we didn't have a relationship, i didn't think much of it. i suppressed it. >> but nothing was worse than the actions of his brother ricky. >> at the time he was having mental problems. >> my first reaction was boy does he make a nice appearance. clean cut, nice looking young man.
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>> but former minnesota prosecutor erickson said nothing could be farther from the truth. ricky swain snapped and murdered his mother in the basement of their home. >> the skull was bashed in two places. there was lots of rage in this death. >> horrible, horrible event. >> yes, it is. >> back in tortola, david swain's psychologist was prepared to explain in court how these horrible events could account for david's emotionless, some say suspicious behavior soon after the death. >> as strategy, i see where that could play both ways. it could blow back and say what is this instability going on in this family? is there a demon seed? people with a pop psychological understanding might say what's going on with this. >> so should a person go to prison for murder because of pop psychological? >> was it a risk? >> i'm sorry, but i didn't have
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a chance to live this truth. the truth is what it is. i'm just wanting to tell the truth. >> but the defensive strategy was never tested. the judge denied the psychologist the opportunity to testify. in part because he was a psychologist, not an m.d. so now it was left to the jurors to decide david swain's fate. >> i'm coming to you live here from the supreme court with the news that the jury is currently deliberating. >> then after just five hours came word. there was a vervegt. >> as they're walking in, i pretty much knew. i'm looking at their body language and knew. >> how say you is the accused guilty or not guilty of murder? >> we the jury find the accused guilty. >> guilty of first degree murder. the sentence, 25 years. >> how do you face that kind of time? >> one day at a time. >> give me a quick thumbnail of what your cell was like.
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>> six by ten, couple of bunks. a commode, a sink. no screen on the bars. so the window, anything and everything would come in. >> bugs? >> bugs were the easy part. it's the rats, the animals, all the other things. those were the hard parts. >> david swain settled back into the misery of prison life. his only comfort was the prospect of an appeal. >> did you think you had a ghost o after chance? >> i did. this wasn't a good trial. this wasn't a fair trial. >> almost two years after his guilty verdict, david swain returned to court. a three-judge appellate panel listened to more than three hours of oral arguments. and then did something no one anticipated. >> they had the judge end it all by looking at me and saying mr. swain, you're free to go. you know, obviously my mouth dropped open. and i'm in shock again. so i just sit there for, i don't
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know, 15, 20 seconds. the bailiff guy he nudges me and quietly says, you got to get up and walk out now. >> why did he walk? >> the panel believed in part that the trial judge had been biased toward the prosecution in her instructions to the jury. what's more, they ruled swain shouldn't be retried because too much time had passed since shelley's death to get a fair trial. so just like that, david swain was a free man. >> that was one of the most surreal moments in my life. >> did you think about shelley as you left the island? >> i think about shelley almost every day. but yes, i was thinking about her that day. >> david swain is now living back in rhode island. not far from the home he once shared with shelley. >> you ever pinch yourself sometimes you're back in new england? >> it's good looking over at jamestown and looking at this body of water where i have spent years exploring and teaching and enjoying. >> but it's also home to many people who remain convinced
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david swain got away with murder. >> is there still a cloud over you? are people always going to say david swain, he got away with killing his wife? that he was cut loose on a technicality? >> that's their opinion. i can't tell you what to think. i don't want to tell you what to think. if you want to hear the facts, i'll be happy to share the facts. but i'm not going to spend a lot of energy trying to change something that you've made up your mind on. >> shelley's gravestone is also close by for those who loved and apyre e amired her to visit. >> if i was to ask shelley what do i do about this, given the situation she would say focus on the here and now. find the good in everybody you see around you. see life's blessings. if you need help, i'll point them out for you. that's what she would do.
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>> that's all for now. i'm lester holt. thanks for joining us. this morning on "meet the press," just one month until election day. has the race taken a new turn? what a difference a debate makes. >> mr. president, you're entitled to your own airplane and house but not to your own facts. >> romney delivers. the president tries to recover. >> when i got off the stage, i met this very spirited fellow who claimed to be mitt romney. >> the economy is again the central focus. the new jobs numbers drop the unm employment rate below 9%. >> we have made too much progress. >> a sign of recovery as the voters head to the polls. we cover it all this morning. the policy fight emerging from the debate and the policy. what does the debate reveal about these two men? plus, our preview of the
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vice presidential debate this coming week. this morning, a special panel. obama campaign senior adviser robert gibbs. former republican presidential candidate newt gingrich. hilary rosen. mike murphy. and nbc's chief white house correspondent and political director chuck todd. and finally, what you haven't heard from arnold schwarzenegger this week. a revealing conversation with the former california governor. he talks politics and his personal failings. >> what would you like your sons to learn from your mistakes? >> i think that they're not going to make the same mistakes. from nbc news in washington, "meet the press" with david gregory. and good morning. one month ago, and so much to get to. i want to get right to our roundtable discussion this morning, anchored by our own mini


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